In fact, Pollack thinks the Obama administration erred in tying the mandate too closely to two insurance rules — known as guaranteed issue and community rating — aimed at covering people with pre-existing conditions and limiting the different rates young and old pay for a health plan.

If those rules stay in place and the mandate is removed, alternative mechanisms could get young and healthy people into the risk pool, Pollack said. Those could include penalties for late enrollees or automatically enrolling people in health plans (and letting them opt out if they don’t want to enroll).

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Still, the mandate has become the centerpiece of the legal challenge — and the component of the law that has put Obama’s signature domestic achievement in the greatest jeopardy.

Barnett and his colleagues argued that by requiring people to enter into a business contract with a health insurer and then regulating that insurance business, Congress granted itself a brand new power. Justice Anthony Kennedy picked up that point in oral arguments, Barnett said. “Can Congress mandate that you engage in commerce so that they can then regulate it?”

If Congress can do that, he argued, it can do almost anything. The court, he said, must draw a line.

Barnett can’t be sure how the court will rule, but sitting in the art-filled living room of his Dupont Circle home, he didn’t look anxiety-stricken. “I thought we’d had a good day.”

Barnett, who has seldom litigated and plans to return full time to academia when this case winds down, calls the law “a disaster for the American people” and “a disaster for our form of government.”

He even has an unusual take on the health reform debate itself. He believes that by the winter of 2010, Democratic confidence in the mandate was eroding — but that the election of Massachusetts Sen. Scott Brown, a Republican, deprived the Democrats of the 60th vote they would have needed to pass a bill substantially different from the version the Senate Democrats had approved — with the mandate — in late 2009.

Pollack, however, said that even though he hopes the mandate is upheld, “there’s so much more to the Affordable Care Act that results in tens of millions of people getting health care coverage. And so, I think if the key parts of the law continue to be in existence, I think that would be terrific, and we’ll move forward in ways that’s taken us decades to achieve.”

The real heart of the law, Pollack said, is “health coverage irrespective of new circumstances: They lose a job, there’s a change in their family status, their income has gone down. That, to me, is the heart of the statute. That’s what needs to be protected. And my hope is that’s where we’re going to end up.”

It’s not about the overreach of government, Pollack said. It’s about the protective assistance of government, giving American families “security and peace of mind.”

Readers' Comments (22)

The mandate is not the most "hated" part of ACA. It is merely the most "winnable". Mandates are unfamiliar and disliked, although most people understand that large populations are what create lower premiums. The most hated part of reform is the unfounded fear that it will increase the number of abortions. Totally false...but motivating.

At its core, the policy debate boils down to spending smart money or dumb money. Our current system spends enough dumb money to almost completely pay for covering everyone with good, basic health care. To me, that’s smart money.

For lower costs, any reform has to figure out how to entice the most expensive 10% to get preventative care. (the 1% of patients consume 20% of all health care spending, the 5% of us who spend 50% of all health care dollars and the 10% who spend about 2/3 of every health care dollar.

The disproportionate nature of spending shows why even small improvements in the most expensive 10% can save so much for the other 90% of us. The importance of covering everyone, partly as a way to get to the expensive 10%, is why we should hope that the ACA sections which protect people with pre-existing conditions (guaranteed issue).

WELL SAID.....MR FRANKUM.....THE KIND OF POSTING THAT....IS NEEDED....BEFORE THE ACA WAS ENACTED....DOYLE MCMANUS OF THE L.A. TIMES....WROTE OF HOW THE SWISS...ADDRESSED THEIR HEALTH CARE ACCESS ISSUES....WITH A NON-PROFIT INSURANCE POLICY....THAT ALL THE SWISS BOUGHT FOR THEMSELVES....TO HAVE ACCESS FOR HEALTH CARE....AND A FOR-PROFIT INSURANCE POLICY THAT WAS AVAILABLE....FOR THOSE WHO WISHED FOR MORE COVERAGE.....IT BROUGHT THEIR COSTS DOWN ....AND INSURED THEIR POPULATION......EXCELLENT POINT OF HOW WE SPEND DUMB MONEY....BUT.....THE DUMB AND USELESS POLITICAL FIGHTS THAT WE HAVE HERE.....CONTRIBUTES TO THAT WASTED SPENDING.....WONDER IF AN IMPROVEMENT OF OUR POLITICAL DIALOGUE AND SYSTEM....WOULD CONTRIBUTE TO SMARTER SPENDING?.....

Politico has had 10 articles on "Striking Down the Mandate will not Hurt Obamacare" in the last 2 weeks. I see this as already the Media blitz started by the Democrats to downplay this issue when they spent 2 years time to incorporate it into the HC Bill. I find it ludicrous now that it is not mandatory. Hello, if it was not mandatory then why was it incorporated into the HC Bill. Congress talks with forked tongue. Now even before we know the SC decision (Unless there is a leak already) there is a change in rhetoric. Before it was necessary, it was not necessary, and now it is necessary, but not really necessary. Can anyone say we can see the hypocrisy in the Spin?

When the President has a dysfunctional, inefficient Congress he must go further than any President has gone with his Executive Orders. The nations fathers warned about Party Politics and other current problems with the Federal Government. It is time for a unicameral Federal Legislature that appoints a President.

This article is a joke. ACA is beyond anything Congress has attempted before?" Such a poor memory for details. The Social Security Act and Medicare were both individual mandates. It is universal for almost all employees and most self-employed.

I think the writer of this article needs to get over his shock and start doing better research. Furthermore, Why doesn't the Supreme Court make the same ruling for Social Security and Medicare and see what the public reaction is. The individual mandate precedent was already set 80 years ago with Social Security and Medicare.

I won, now sit down and shutup.. Yuppers, that's the way to build consenus..

Two wasted years, two years where the economy and jobs were wilting.. What did the Messiah do?, pushed a massive spending bill (with those, as we know now, not so shovel ready jobs), pushed a bill that many did not want, many did not read, that needed bribes and executive orders to get enough DEMOCRAT votes to pass it. Nary a GOP vote.

Good governance?, me thinks not..

And some think it would be better to not give the peole direct voting for President, some think that the euro way is the way.. I am sure they would have no problem with you going there...

And remember, through all of the bribes and LIES (I really did like my coverage, I really wanted to keep it, what, it isn't available, why, getting ready for Obama doe not give a chit about you...).

For those comparing ssi and medicare to this mandate I will trying to explain it while trying to surpress my laughter. SSI and Medicare are mandates all right. They are FUNDS created as a form of TAX to be used later for our benefit when we reach a certain age. You have to be working to contribute to it, and not all income applies to it. This individual mandate in the ACA is to buy PRIVATE health insurance . Health insurance are gamblers who bet you will pay far more in premiums than you pay out . Can you imagine if you owned a company and the government came and FORCED everyone purchase your product. You would be jumping up and down for joy . By the way, notice how they never told us how much these monthly premiums were going to be in this 'mandate' ? Ouch. For those who want to argue about 'coverage' and whatnot, we dont live in a SOCIALIST country where we look at the whole nations wealth and decide to chop it up and redistribute it. There is no problem with healthcare in the United states. Anyone can go at any time and get any care they need. Its WHO PAYS FOR IT is the issue. Liberals spin it from a socialist point of view so they can get more than they give. Healthcare and Health insurance are TWO different issues. They are not the same thing.

I have news for you -- you are FORCED to take Medicare. Lawsuite not pending over this issue. When I retired I did not want Medicare but I had not choice I WAS FORCED TO ENROLL. Everyone ages 65 is forced to enroll in MEDICARE

The filthy fact about ObamaCare is that there is more than one fly (individual mandate) in that soup. The fact that is overlooked is that this so called national health care is not required by the elite elected politiCons. Once again, Congress passes laws that allow them to not participate in.

Con-gress always ensures separate & better laws for the elected politiCons. It's time to end this parallel legality which is supported with tax dollars, and yet do not benefit tax payers.

Until opponents of the ACA can make the 90's go away, the era when the individual mandate was created, refined and championed by the Republican party and its affiliated conservative think tanks, I assume any argument against the ACA is window-dressing.

That is, opponents of the ACA oppose it because a Democrat proposed it. Period. No further analysis required.

I have yet to read a criticism of the ACA that wasn't an after-the-fact rationalization of a decision made for political reasons.

In any event, not to put too fine a point on my ad hominem attack, but this Randy Barnett is a radical. Asking him about the ACA is similar to asking a liberation theologist what they think about capitalism.

This article is a joke. ACA is beyond anything Congress has attempted before?" Such a poor memory for details. The Social Security Act and Medicare were both individual mandates. It is universal for almost all employees and most self-employed. I think the writer of this article needs to get over his shock and start doing better research. Furthermore, Why doesn't the Supreme Court make the same ruling for Social Security and Medicare and see what the public reaction is. The individual mandate precedent was already set 80 years ago with Social Security and Medicare.

1. Social Security and Medicare are TAXES which is an enumerated power.

2. Mandate to purchase a product (or responsibility fee) EVERY MONTH OF MY ADULT LIFE OR BE FINED BY THE IRS IS NOT A TAX. It is an unconstitutional use of plenary police power which belongs to the states.

3. ACA is NOT a tax. Among other things IT FORCES ME INTO COMMERCE and COERCES ME INTO A CONTRACT WITH A PRIVATE COMPANY. This is ILLEGAL EVERYWHERE BUT ODUMBOLAND AND LIB WORLD.

The way the Dems are trying to spin this tells me that they understand that the Mandate is gone next week and they are trying to do damage control. The idea that SS and Medicare are the same when clearly they are not. That there is still plenty of ways for Obamacare to work without the mandate. Then there's the stupidest idea of all, blame the GOP because a right leaning think tank wrote a paper stating it's advantages. Guess what, it doesn't matter who thought of it the Dems were the ones stupid enough to put it into a law.